Utah Revisits Batson v. Kentucky and Do We Really Need a Chart to Figure This Out?

• Publication year: 1992
• Pages: 18

Utah Revisits Batson v. Kentucky and Do We Really Need a Chart to Figure This Out? Vol. 5 No. 6 Pg. 18 Utah Bar Journal July, 1992

June, 1992

Michael D. Wims, J.

The Supreme Court of Utah recently decided the case of State v. Span^[1]. In Span, the Court faced the issue of whether the prosecutor had improperly used a peremptory challenge against Mr. Phung, a Vietnamese, who had been on the venire. One of the more crucial issues in the opinion was whether Mr. Phung's race constituted a "cognizable minority group." The decision was a natural result of a 1986 United States Supreme Court opinion, Batson v. Kentucky^[2]. In order for us to understand how we, in Twentieth Century America, have come to the point of litigating human pedigrees, it is necessary to begin at the beginning.

Attacks on the racial make -up of grand juries, venires, and petit juries have existed since shortly after the American Civil War^[3] . West Virginia had a statute that qualified only white people for jury duty. In Strauder v. West Virginia^[4], the Supreme Court of the United States ruled that a black person was not necessarily entitled to have another black person on the petit jury, but that a black person was entitled not to have members of his race systematically excluded from the venire. It is important to note that the decision was based on the then recently adopted "equal protection" portion of the 14th Amendment to the federal constitution.

Let's now move forward 85 years in time to 1965. Because of the 14th Amendment, it had been clearly unlawful since 1880 to exclude black people from the venire. In Swain v. Alabama^[5] black people had not been excluded from Swain's venire. In fact, eight black people were present as members of Swain's venire. Yet, no blacks ended up on Swain's petit jury, and none had succeeded in serving on a petit jury in that county for at least 15 years. Swain claimed that the 14th Amendment's equal protection clause should condemn such a practice. In rejecting Swain's argument, the Supreme Court ruled that Swain would have to shoulder the burden of showing the State had engaged in a systematic pattern of discrimination in order to prevail. Swain had failed in that he had not shown that the State was the party that challenged all the black persons for the past 15 years. Also, Swain had failed to prove ill motives by the prosecutor.

Before we turn to Batson, the case of Taylor v. Louisiana^[6] merits attention. Louisiana had a state law that provided for no females being on the jury without written consent. Taylor, a male, had no females on his venire. The Supreme Court ruled that Taylor did not have to be a member of the excluded class to make a valid Sixth Amendment claim to a venire consisting of a "fair cross section of the community."

Now we turn to Batson. Batson, a black man, was tried for burglary. Four blacks were present on his venire, so there was no violation of the 14th Amendment's (and Strauder v. West Virginia) requirement not to systematically exclude black persons from the venire. Still, the prosecutor did peremptorily challenge all four blacks from sitting on Batson's petit jury. Batson was now faced with how best to frame the issue on appeal. Presumably his counsel has read how Swain lost by framing a petit jury claim under the 14th Amendment, and how Taylor prevailed by framing his venire claim in Sixth Amendment terms. If Batson makes a claim under the 14th Amendment's equal protection clause, J presumably, like Swain, he will be told I that he'd have to shoulder the burden of showing an established pattern of discrimination, and proving ill-motives by the prosecutor. The choice seems clear. The best tactic for Batson will be to take the sixth amendment's right to a "fair cross section of the community" and claim application of that right not just to the venire, as in Taylor v. Louisiana, but also to the petit jury.

Obviously, if we were Batson's counsel, we'd seek to avoid presenting this as a 14th Amendment, equal protection, claim in order to avoid the result that Swain suffered. We don't want to be told that we failed to show an established pattern of...